Accusations Fly in Viacom, YouTube Copyright Fight

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Accusations Fly in Viacom, YouTube Copyright Fight

Google deliberately weakened its copyright compliance standards after it acquired YouTube in 2006 so it "would profit from illegal downloads," Google co-founder Sergey Brin once said, according to a Friday filing by Viacom in its infringement suit against the company.

YouTube, in its own Friday filing and in a blog post, said it was legally immune to copyright infringement claims -– even if it knowingly hosted copyrighted works on its video-sharing site. One reason was that Viacom – which owns MTV, BET, Paramount and other media concerns – had a marketing practice of secretly uploading its own videos to YouTube, some of the same works at issue in the case.

"Viacom alone has uploaded thousands of videos to YouTube to market hundreds of its programs and movies, including many that are works in suit," Google wrote. "Given the broad scope of marketing, YouTube could not be charged with knowledge of infringement (.pdf) merely because it came across a video that was clearly from a professionally produced television show or movie."

Google added that, "Both before and well into this litigation, Viacom's own monitoring agent, BayTSP, identified as 'infringing' many videos that had in fact been posted to YouTube with Viacom's permission." Google added that "the only way that YouTube knew which clips Viacom actually wanted to remove at any given time was from the takedown notices it received."

Each company's filing, which ask a New York judge to rule in their favor before trial, was guided by thousands of documents the parties turned over to one another as part of the discovery stage of the 3-year-old litigation. Viacom is seeking $1 billion in damages in a case testing the depths of immunities under the Digital Millennium Copyright Act.

Viacom claims YouTube has lost the so-called "safe harbor" protection of the Digital Millennium Copyright Act. The DMCA, adopted in 1998, provides internet service providers like YouTube immunity from infringement lawsuits if, among other things, they promptly remove copyrighted content at the request of the rightsholder.

Viacom said Google does not qualify for immunity, because internal records show that Google was well aware that its video-hosting site was riddled with infringing material (.pdf) posted by its users. Viacom said Google, which purchased YouTube for $1.8 billion, adopted YouTube's "willful blindness strategy " and abandoned a copyright-screening policy it once practiced on its now-shuttered Google Video site.

"Instead of screening as was done at Google Video, now every infringing video would remain freely available on YouTube until a copyright owner could detect it and send a takedown notice," Viacom wrote.

Around the time of the acquisition, Brin said during Google's internal copyright debate that it was altering its policies "to increase traffic knowing beforehand that we'll profit from illegal downloads," according to Viacom's filing.

But Google, which began a copyright-filtering program two years ago, contends it has complied with the thousands of takedown notices from Viacom. So Viacom must prove that Google knew YouTube users were infringing Viacom's rights – not just copyrights in general – an argument similar to those made by pirate sites.

YouTube, Google wrote, "is simply not the kind of 'pirate' service – one set up with the 'patently illegal objective' of encouraging its users to infringe and compromised overwhelmingly of infringing material."